52 F. 857 -

52 F1d 857

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Case Text

SHIRK'. CITY OF LA J'AYETTJIJ.

857,

eleven, to wit: ,'The court instructs the jury t.hat the of time saryti> barlHight ofentl'y on an for land bet,wee..' the year 18.04. and the.yeat 1850 was twenty-five years; that·frOiD the year 1850 to the yearl8q1 the length of iimenecessary was fifteen years; and since the yel,l1' 1861 the length,of tlme necessary has been ten years, from Which. last period, however, the time of any possession eXlsti.ng between the 11th day of April, 1861, and the 1st day of January; 1869, must be excluded.' "

much other of similar irnport,as 'iLppears by? the record, it [email protected] have been 'gross en-or for the court 'to 'hav.e refused to give this; inBtruction., 'The next and last er'roJ<assigried, not abandoned,i& the thirty..first, toivit: court erred in giving to the jury defendant's instruction number

We think tllislnstruction in strict accordance withthe statutes of Virginia relating to. this questibn. There was nO evidElIlce before the jury rendering it as claimed· by plaintiffs in error, and: the court very properly ga\'e i t . , '.' . We havenow c.onsideredand passed upon an the specifications of errornot abandoned by the plaintiffs in error, and we find no error'in the r:ecord; therefore the judgment is' affirmed, with costs.

SHIRK'

f'.'

CITY OF LA FAYE'rl'E.

(C1.rcuit Court, D. Indiana. October 94, 1892.)
NO,8,788.

1.

CONSTITUTIONAL

LAw-TRuST··s, , . '. · '. whichpr()vides that it shall be unlawful for any person, . Rev. St, lDd. sociation, or corporation to appoint a nonresident a "trqsteein a deed, or other instrum.ent in wri.ting, ·.e xcept wills, for. any purpose whatever, II is in conflict with CODSt. U. B. art. 4, §2, which provides that "citizens of each state shall be entitled 1::0 all tbe privileges and immunities of citizens in tile severalsta,tes. "

as-

.,; FEDERAL CotiRTS...:.J"URISDICTION,-DIVJl;BSE CITIZENsmp.

a citizen of Illinois 111 appointed trustee by an Iudianacourt of property situQ,ted in .latter state, the citizllnsbip of such persoD for the purpose of Jurisdiction is nlit aftected by'such .appointment, and he may maintain an' action ill a federal co.rt for Indiana in. his trust capacity for damages to sllch property.

At Law. Action by Elbert W. Shirk, trustee, against the city of La Fayette. On motion to dismiss the complaint for want of jurisdiction. Dverruled. A. a. Harris, for plaintiff. John F. McHugh, for defendant.
BAKER, District Judge. Action by the plaintiff, as trustee, against the defendant, to recover damages for the diversion and use of water. The complaint alleges that the plaintiff is a citizen of the state of Illinois, and that the defendant is a citizen of the state of Indiana. It further alleges that the plaintiff' was duly appointed trustee of property situated

858 in this' stll.te \:iy \heeircuihonrtqof,Miami count1:1 Ind. The defendantmOVeBta :distitiss ::for 'Wantr'bf' juri8dietionoIkthil ,ground that. the plaintiff.' tllough:adtual1y residing jn Illinois, ,is· to . deemed a citizen of this state, because he was appointed trustee by an Indiana court, and sues in his: for damagecto situated in this state. deciding, ,that the of the, court Uia,y be motipn, as i\Sby plea oNtn'Swer,(but see McDonald Iv·. . L :".H¥l, 23 363,) I tq of thequestlon On Its merIts. Ind., whic1::l,provides that,'lit shall be unlawful for any person, association, or col!porationto nominate or appoint any perSon 8 :-.nY<lflEld, mO,rtg\,\ge, Qf in writing fONl,nYP\1rppse.wha,tever, beat the time a honaMe: ,such in with Const. U. S. art. 4, § 2, which declares that "the cItizens of each state shall be to tpe:privilegtllJ"and, .iDlmullities of in the 25 N. E. !tep. 807; Robey v. Smith, Farmers'Loan &'7rust 00. v. Ohicago & A. Ry. 00.,27 Fed. :Rep. 146. '. , The statute of this state which sought to make it unlawful for a citizen of another state to act Its trustee in this state being unconstitutional 'l.nd void, the question of jurisdiction must be settled by determining for property In Rice v. Houston, 18 Wall. 66,it ie held that onb appointed administrator may become a citizen of another state, and, after such changa of ,citizenship, he may sue in the federal coqrt. So, in New Orlea'l18 v. Whitney, 138 U. S. 595, on page 606, $,tId llSpp. 128,°11. 431, the court says: "We havere.peatedly held that representatives:ma.ystand upoIJ,:their own citizenship h the courts, the citizenship' of the persons whom they represent,...-,such-,tl8 executors, administrators, guardians, 4'ustee8, receivers/' etc. .To<thesameeffect .is the case of <Harper v. Rail,.. r.oadOo., Rep. in the federal 'oourtsstatil the rule of law' in the same way. ',Fost. Fed. Pro § 19; '1'hemonoh is groundless, and must be overruled. Story, Fed."Pr.§ It is so ordered. if
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BLAClt f1. ELKHORN JrIIN. 00.

859

BLAClt t7. ELKHORN

MIN. Co., Limited.

1891.)

(omuit COU'It IU' 4PpeaZ8.;1V'tnt;h OW-em4&.

No. ...

1)0".. 1lf MINING CLADrs.

. .', ' The mere possessory right given by Rev. St. 5 2329. to tbe JO'O&tor of · mlntn, claim is not such an estate as that dower can be predicated thereon by state leg49 Fed. Rep. 649, disapproved. ,islation as against the United State. Or its

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In Error to the Circuit Court of the United States for the District of Montana. . At Law. Action by Mary A·.Black against the Elkhorn Mining Company, Limited, to recover dower in a mining lode. A demurrer to the complaint was overruled. 47 Fed. Rep. SO,al$o, was a rer to new matter in the answer. 49 Fed. Rep. 549. Judgment for defendant. Plaintiff brings error. Affirmed. Word. 8miJh.k Word, for plaintiff in error. W. E. Oullen? (Goo. F. Shelton, on the brief,) for defendant in error. Before McKENNA, Circuit Judge, and Ross and MORROW, Distriet Judges.

Ross, District Judge. The plaintiff in error is the widow of L. M. Black, who, during his lifetime, and while plaintiff in error was his wife, owned ,an undivided two fifths of a certain mining claim. situate in the then territory of called the "A. M. Holter Quartz Lode." Black, on the 7th of Maroh, 1879, sold and conveyed his interest in the claim to one Burton, his wife, the plaintiff in error, not joining in the conveyance. In July, 1881, Black died intestate. The interest so ronveyed to Burton subsequently passed by various mesne conveyances to the defendant in error. On the 29th of October, 1883, an application was made to the proper United States land office by the immediate predooessor in interest of the defendant in error to enter the claim, and such proceedings were had in the matter of the application that on the 19th of November, 1889, a patent therefor was issued by the United States to the applicant. No protest, advers" c1l!'im, or objection of any character was made by the plaintiff in euor at any stage of the proceedinJ(s in the land department. A statute of Montana, passed in 1876, provides as follows: "A widow shall be endowed 01 the third part of all lands whereof her husband was seised of an estate of inheritanee at any time during tbe marriage. unless the same shall have been relinquillhed in legal form. Equitlloble estates shall be subject to tbe widow's dower. and all real estate of every description contracted tor by tbe husband during hislifetime,tbe title to which may be completed after his death." Section 1. LawilMont. 1876. (9th 8esa.) p. 68. This statute the supreme court of Montana decided. in the .C8se .of Chad'lJ1ick v. Tatem, 9 Mont. 354, Rep. 729, continue8 in foree. puder and ,by virtue of its provisions the plaintiff in error, on the20tb